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FCC Stands Behind Selection of Winning NCE Construction Permit

The commission denied a petition that challenged Modesto Independent Media

The Federal Communications Commission has denied a petition challenging its choice of applicant for a construction permit for a new noncommercial educational FM station in California.

This is another case involving mutually exclusive applications filed in the window for new NCE stations last November. 

The Media Bureau identified five mutually exclusive applicants in MX Group 39. Among the five, the bureau determined that applications submitted by three of those groups — Remanente Broadcasting Network (RBN), Modesto Independent Media (MIM) and the Association for Community Education Inc. (ACE) — were eligible for a fair distribution preference.

But MIM’s application, the FCC found, proposed a first NCE service that exceeded both the RBN and ACE applications’ service by more than 5,000 people; so the bureau named MIM as tentative selectee. MIM’s FM station would serve Los Banos, a city that calls itself “the crossroads of California,” located in the San Joaquin Valley.

Several months later, a petition to deny this decision was filed by ACE. The organization claimed that the MIM application should be denied because MIM lacked reasonable assurance of the availability of a site for a tower and that it had failed to demonstrate that the proposed station would meet the goals of an NCE license.

Among other things, ACE argued that MIM did not have the name, title or contact information of a specific person at the proposed site; that MIM could not locate records proving it had acquired a site; and that MIM failed to provide proper documentation stating its educational objective. 

In reply, MIM said that its technical consultant had contacted the owner of the proposed tower site, American Tower, prior to the filing deadline and obtained assurance about the site. 

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MIM also said that it did provide sufficient information on its objectives and educational program plans; those were submitted when MIM filed an article of incorporation document with the state of California. MIM also argued that ACE failed to cite any precedent to demonstrate that MIM’s educational programing statement is insufficient.

Soon after, MIM amended its proposal to include two additional exhibits, one containing documentation of site assurance and the other detailing more of its programming agenda. 

But when MIM amended its proposal, ACE said, it effectively admitted that it had failed to follow proper instructions earlier. It again asked the bureau dismiss the application. 

In its ruling the Media Bureau agreed that an NCE FM applicant must show reasonable assurance that its site will be available for construction and operation when it files an application. It must include information on the person who verified the site’s availability and their relationship to the site. If the bureau finds that an applicant does not have this reasonable assurance, it will dismiss.

In this case, however, the Media Bureau said there was nothing to conclude that MIM lacked the information to certify that it had site assurance when it filed. Though MIM did not give the name of the individual at American Tower, it did show that it had site assurance, as required.

In addition, MIM later included an attachment with an updated contact name and phone number; and the bureau said there’s nothing in the FCC rulebook to show that failure to initially provide all the required information can’t be corrected if it’s done on time.

As a result, the bureau found that dismissal of the MIM application was not warranted. It dismissed ACE’s petition and granted MIM’s construction permit for a new NCE FM station in Los Banos.

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